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The Treaty of Lisbon is essentially an amending treaty; it amended the Treaty on European Union and the EC Treaty. The amendments have been significant, but we do not see, as the Constitutional Treaty proposed, a complete replacement of the previous treaties with a new legal instrument. Instead we have the impression of incremental change. This decision, to retain the two treaty structure of the present constitutional architecture, was almost entirely driven by the need to demonstrate that the new Treaty was something different from the Constitutional Treaty (and that the public voice...

The Treaty of Lisbon is essentially an amending treaty; it amended the Treaty on European Union and the EC Treaty. The amendments have been significant, but we do not see, as the Constitutional Treaty proposed, a complete replacement of the previous treaties with a new legal instrument. Instead we have the impression of incremental change. This decision, to retain the two treaty structure of the present constitutional architecture, was almost entirely driven by the need to demonstrate that the new Treaty was something different from the Constitutional Treaty (and that the public voice evidenced in the negative referendums had been heard), and that the new Treaty did not in fact make major constitutional changes (and new referendums did not need to be held). But is the ‘two treaty solution’ to the constitutional impasse in fact a purely cosmetic exercise and what are its legal implications? This chapter will examine the two treaty solution resulting from the Lisbon Treaty and the legal relationship between the two Treaties. Its conclusion is that the two treaty solution is in fact rather different both from the Constitutional Treaty and — to an even greater extent — from the pre-Lisbon treaties. It is more than a purely cosmetic exercise, but at the same time produces results significantly different from the pre-existing two treaty structure.